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Lawsuit: Council Violated Numerous Laws When It “Saved the Showbox”

In a move so predictable it hardly even merits an I-told-you-so (but I did tell you so), the owners of the building on First Avenue that houses the Showbox have sued the city in response to a land-use decision that effectively downzones their property from 44 stories to two, arguing (among other things) that the move constitutes an illegal spot zone and a taking of private property worth $40 million—the sum for which the owners had planned to sell the land.

To unpack the story—which David Kroman broke on Crosscut earlier today—it helps to recap a bit of the whirlwind history that led us to this point. Last month, news broke that a Vancouver developer called Onni Group planned to tear down the Showbox and redevelop the property as a 440-foot-tall apartment building with 442 units, which could have included a new ground-floor music venue. The city council had just upzoned the property as part of the city’s Mandatory Housing Affordability plan, which grants developers in some areas, including downtown, the right to build taller and denser in exchange for building or funding affordable housing. However, a public outcry—spearheaded by music fans and amplified by anti-development council member Kshama Sawant, who saw the controversy as an opportunity to stop a “greedy developer” from profiting from a new high-end development—prompted “emergency” legislation that expanded the Pike Place Market Historical District to include the Showbox property for at least the next ten months. (The property is owned by strip-club magnate Roger Forbes, who also owns the Deja Vu Showgirls club down the street; the Showbox itself is operated by a tenant, AEG Live, which describes itself as “the world’s second largest presenter of live music and entertainment events.”) Initially, Sawant proposed a dramatic expansion of the historical district that would have effectively downzoned a dozen existing properties and forced property owners to obtain permission from a historical commission before renting to new tenants or making any visible changes to their property, but that was eventually scaled back and only the Showbox property got the “historical” designation. The new rules last for ten months—long enough for the city to decide whether to extend them and make the two-story Showbox building a permanent part of Pike Place Market, and long enough (or so the “Save the Showbox” crowd hoped) to convince Onni to go away and for supporters to put together a plan to preserve the space as a music venue in perpetuity.

That brings us to the present, and the lawsuit filed last week. The suit claims that the city council violated the owners’ property rights by passing a spot rezone that reduces its value by tens of millions of dollars; that they violated the state’s Appearance of Fairness Doctrine, which requires officials like council members to keep an open mind on so-called quasi-judicial land use decisions (like zoning changes for a specific property) until after all the evidence has been presented and to make their deliberations in public, not behind closed doors; that the inclusion of the Showbox in a historical district designed to protect farmers and small-scale artisans is “the definition of arbitrary and capricious”; and that the “illegal spot zone” violates the city’s comprehensive plan, which calls for more density in places like downtown Seattle. “The Decision [to expand the historical district to include just the Showbox] bears no rational relationship to promoting a legitimate public interest; it singles a small area out of a larger area for use and development restrictions that are not in accordance with similarly situated neighboring properties and not in accordance with the City’s Comprehensive Plan.”

The fairness doctrine allows council members to have a general opinion on land use questions; it doesn’t allow them to go into a land use discussion with their minds made up, and it certainly doesn’t allow them to actively campaign on behalf of one side or another in a quasi-judicial land use debate.

The argument that the council’s vote to put the Showbox in the Market historical district represents a spot rezone—that is, that it effectively turns a property with a 440-foot height limit into one with a limit of just two stories, the height of the existing Showbox building— is critical. If the court accepts this argument, they may also be inclined to accept the property owners’ argument that council members, particularly Sawant, violated the law by discussing the decision outside the public eye, and participated in a campaign in favor of the rezone. The fairness doctrine allows council members to have a general opinion on land use questions; it doesn’t allow them to go into a land use discussion with their minds made up, and it certainly doesn’t allow them to actively campaign on behalf of one side or another in a quasi-judicial land use debate. (If this argument sounds vaguely familiar, you probably remember it from Strippergate—a scandal that contributed to the defeat of two city council members who violated quasi-judicial rules when they discussed, and voted for, a rezone to allow strip-club owner Frank Colicurcio to expand the parking lot at his Rick’s strip club in North Seattle. In an odd turn of fate, Showbox property owner Forbes purchased Rick’s from Colacurcio in 2011.)

The lawsuit echoes a point that I have made numerous times at The C for Crank about basing policy on the wishes of a vocal few—in this case, music fans and industry employees who sign petitions and hold signs that say “Save the Showbox” and write songs bemoaning the inexorable fact that cities change: “When politicians cater to populist calls – whether those calls are ‘lock her up,’ ‘build the wall’ ‘ban Muslims,’ or ‘Save the Showbox’ – civil and other rights are placed at risk. Populism, and politicians’ desires to appease their loudest constituents and generate headlines must, however, yield to the rule of law. Luckily for those who prefer protection of civil, constitutional and property rights, the courts exist to preserve, protect and enforce the rule of law.” Indeed, the suit argues that the council caved to public pressure in order “to enhance its political popularity” and “enacted an unlawful ordinance that was intended to, and did, place all the burden of providing a public music venue to City residents onto the shoulders of a private landowner. The ordinance greatly and instantly devalued the property and will scuttle its redevelopment unless the City’s improper spot down zone is declared unlawful.”

The owners of the Showbox property don’t mention race and social justice in their lawsuit. But had they done so, I suspect that the city would have trouble making the case that protecting the Showbox, a venue where tickets typically start at $35 once all of AEG’s “convenience” and other fees are included, advances its race and social justice goals. Particularly when doing so means foregoing $5 million to build housing for people who can’t afford $35 concert tickets.

The complaint also takes a swing at the notion—which several council members, particularly Lisa Herbold, made explicit during the debate over the historical designation—that the squat, repeatedly remodeled Showbox building itself is “historic.” The city, the lawsuit notes, hired a consultant to consider the Showbox for historic landmark status in 2007, but found that the building lacked “any redeeming landmark features.” This, the complaint continues, “was partly because the building had been remodeled during its many uses in the past including as a comedy stage, an adult entertainment arcade, a furniture store and a bingo hall.” When Showbox preservationists talk about “silencing the ghosts of Seattle’s history,” as one of the venue’s bartenders did last month, is that the history they’re thinking of?

One final note. Ordinarily, when the city makes land-use decisions, it puts those decisions through a rigorous Race and Social Justice Initiative (RSJI) analysis to determine what impacts the decision might have, positive or negative, on marginalized and low-income communities. As far as I can tell, the city did no such analysis when it decided to effectively downzone the Showbox block—a decision that also meant foregoing about $5 million in funding for affordable housing under MHA. The owners of the Showbox property don’t mention race and social justice in their lawsuit, perhaps because such goals are hard to quantify (and harder still in the absence of the usual analysis). But had they done so, I suspect that the city would have trouble making the case that protecting the Showbox, a venue where tickets typically start at $35 once all of AEG’s “convenience” and other fees are included, advances its race and social justice goals. Particularly when doing so means foregoing $5 million to build housing for people who can’t afford $35 concert tickets.